The Right to Legal Representation and Equality before the Law in Criminal Proceedings in Botswana

• Jurisdiction: South Africa
• Published date: 16 August 2019
• Citation: (2011) 22 Stell LR 94
• Date: 16 August 2019
• Pages: 94-114
• Author: R J V Cole

94

THE RIGHT TO LEGAL REPRESENTATION

AND EQUALITY BEFORE THE LAW IN

CRIMINAL PROCEEDINGS IN

BOTSWANA

RJV Cole

LLB BL LLM LLD

Lecturer, Department of Law, University of Botswana*

1 Introduction

Like all modern democracies, the right to legal representation is

guaranteed by the Constitution of Botswana1 (“the Constitution of

Botswana”). But sadly, constitutional provisions by themselves do not offer

protection of fundamental human rights. Constitutional provisions become

mere rhetoric and insufcient mechan isms for the protection of human

rights, if proper measures are lacking to ensure that they are followed

through. If the right to legal representation is to be attained, the thesis that

rst generation civil and political rights a re negative r ights which merely

forbid the state from violating the rights of the individual is unsustainable.

The right to legal representation is meant to ensure procedural equality.

The state has a standing body of trained prosecutors who are supported by

the police. Adversarialism is about “combat”, and the dis advantage suffered

by the unrepresented accused facing a trained prosecutor is in similitude

with pitting an unarmed peasant in contest against an armed gladiator. No

matter how fair the process, how generous the prosecutor and how helpful

the court to the accused, if he is made to stand trial unrepresented and face

a trained prosecutor, he is immediately and fundamentally disadvantaged.2

Therefore, a criminal trial remains potentially unfair if the accused is

unrepresented. Concepts like equality before the law, access to justice

and other procedural rights remain hollow promises if the right to legal

* This art icle is a revised versio n of a chapter of the author ’s thesis, RJV Cole Equ ality of Arms and A spects

of the Right to a Fair Cri minal Trial in Botswana LLD th esis Stellenbosch Universi ty (2010) Promote r

Prof SE van der Mer we

1 Constitut ion of Botswana, 1966

2 In the civil ca se of Airey v IrelandECHR (1979) Series A No 32; (1980) 2 EHRR 305 314-315, the applicant

wanted to pet ition for judicial separat ion in the Irish High Cou rt but could not afford to hir e a lawyer

The test applie d by the Court was whethe r the applicant was able to pres ent her case satisfactor ily and

properly The Cour t, applying the a dversarial requ irement, said:

“It seems certain to the Court that the applicant would be at a disadvantage if her husband were

represente d by a lawyer and she were not Quite apa rt from this eventu ality, it is not realistic, in t he

Court’s opinion , to suppose that , in litigation of thi s nature, the ap plicant could effect ively conduct her

own case, despit e the assistanc e which, as was stre ssed by the governme nt, the judge afford s to parties

acting in pe rson ”

(2011) 22 Stell LR 94

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representation is not attainable.3 The right to legal representation should

ideally include the provision of legal representation by the state where the

accused cannot afford one. In Botswana, there is a constitutional right to

legal representation without a concomitant provision of legal aid. Legal aid

is central to equal ity before the law.4 Therefore, the main obstacle to the f ull

realisation of the right is the availability and allocation of funds for legal

aid.5

This article examines the constitutional and statutory guarantees in

relation to the right to legal representation. The second part discusses the

constitutional basis for the right to legal representation in Botswana and

articulates it s scope, application and limitations. The thi rd part underlines the

statutory reg ulation of the right, while the fourth par t articulates the relevance

of legal representation to the concept of equality before the law, recognising

the disadvantages suffered by the unrepresented accused in the adversarial

system. The fth pa rt disc usses the all-importa nt duty of judicial ofcers

to inform an unrepresented accused of his right to legal representation. It is

argued that failu re by the courts to recognise t his duty as a constitutional rig ht

has sig nicant consequences for the r ight to legal representation. The sixth

part discusses the absence of a comprehensive legal aid system in Botswana

and sheds light on pending reforms. The article concludes that the present

constitutional framework in relation to legal representation is inconsistent

with equality before the law in t hat it imposes no duty on the state to provide

legal representation. It is concluded that the solution to the problem lies in a

comprehensive state-funde d legal aid programme.

2 The constitutional basis of the right to legal representation

2 1 Scope of the right

The right of an accused to legal representation at trial is guaranteed

by constitutional and statutory provisions. It is a fundamental right and

3 C Harlow “Access to Justice as Human Rights: The European Convention and the European Union”

in P Alston (ed) The EU a nd Human Rights (1999) 186 187; P Traest & T Gombeer “The Autono my of

Defense and Defen se Counsel” (2007) 1 Ius Gent ium 97; LW Schroeter “Attor ney Representation: A n

Essential R ight or Not?” (05-08-2003) Washing ton State Access to J ustice Board <http://www wsbaorg/

atj/committees/jurisprudence/attyrep htm> (accessed 20-05-2010)

The Europea n Court of Human Rights h as relied on the principle of equ ality of arms to ensu re that

unrepre sented litigants in civil ca ses present their cases pr operly and satisfactorily In this regard the

Court held th at the state should p rovide legal repre sentation for un represente d litigants in civ il cases in an

adversar ial system See Airey v Ir eland ECHR (1979) Series A No 32; (1980) 2 EHRR 305

4 R Clayton & H Tomlins on The Law of Human Righ ts I (2000) 649

5 As A Lester Lega l Aid in A Democratic Soci ety (1974) paper presented at a confe rence on Legal Aid in

South Afric a hosted by the Faculty of Law, Universit y of Natal in Durban, 02-07-1973 to 06 -07-1973,

(publication of Fac ulty of Law University of Nat al) notes:

“It was well understood t hat poverty, ignora nce and fear among wou ld-be litigants , the obscurit y of the

law, and the cost of delays of lit igation, were major im pediments to the a ttainment of genu ine equality

before the law ”

JG Fry nas “Problems of Acc ess to Court s in Nigeria: Result s of a Survey of Legal Pr actitioners ” (2001)

10 So cial and Legal Studies 397 406; F Rey ntjens “Africa – South of the Saha ra”in EH Zemans (ed)

Perspective s on Legal Aid: An Internationa l Survey (1979) 12 13-14; PM Bekker “The R ight to Legal

Representa tion, including Effec tive Assistance, for an Ac cused in the Crim inal Justice System of Sou th

Africa” (200 4) 37 CILSA 173 179

THE RIGHT TO LEGAL REPRESENTATION AND EQUALITY 95

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